Universal Social Right
Chapter 1
Factors of Society
21. To know social Right we first have to know society. The duties and rights of members of a society spring from the nature of the society. This is true in the case of members taken individually or as parts of the collective person called society.
22. Developing a study of social Right will be greatly helped, therefore, by my previous work on society,(3) of which the present volume is a continuation and to which it will constantly refer. I shall, of course, try to help my readers by returning to certain points dealt with there, but other points, which I take for granted are known to my readers, will not be mentioned.
23. The most important of the points to which I have to return and draw
attention regards the diversity in relationships of human beings with
things and persons, and the diversity of bonds joining
human beings with things and persons.
As we said, these relationships are necessary because they exist in the
concepts and nature of things; the bonds, as the effect of the willed
activity of human beings, are contingent.
24. The relationship of human beings with things is one of end to means; the
relationship between persons is one of end to end.
The bond which human beings make with things is one of ownership,
through which each person uses things for his own ends and reserves them
perpetually and exclusively for his own use.(4) Each person also binds himself to other persons. These
bonds vary in nature; our consideration of them leads us to knowledge of
society.
25. In the logical order, the bond with persons is posterior to the bond
with things.
The individual who has joined things to himself by the bond of ownership has
not necessarily established any bond with other persons, although if we
suppose his inhabiting the earth with others, he now has a new relationship
with them - or better, he has extended the relationship he already had with
them. This relationship is essentially that of end to end, and consists in the
moral obligation to respect other persons as having an existence of their own,
an existence which is neither subordinate nor servile. In other words, their
freedom and ownership has to be respected, as we have already said at length.(5) By means of the bond of ownership between
the individual and things, other rights are added to the connatural rights he
already possesses; a new object (the things acquired by the person) is added to
the moral obligation of respect due to the person. But society between
individuals has not yet come about: mere relationships, mere moral and jural
obligations, do not constitute society; they remain part of the jural state
normally called the state of nature in opposition to the state of
society (cf. RI, 1053).
26. By `in opposition' I mean that there is real opposition between relationships resulting from the bond of ownership and social relationships resulting from the bond of society.
27. Right in one person, and the corresponding obligation to respect it in others, sets up a kind of division between person and person. One person is opposed to the other as active is opposed to passive. One possesses a right exclusively; the other is compelled to respect it despite the difficulty, privation or sacrifice this may cause. The command of the jural law is inflexible and, one might almost say, unmerciful. Such inflexibility of right often renders the relationship onerous. The imagination sees it as real hostility between persons rather than separation. Nevertheless, it is just; indeed this is justice taken in its strict sense. A person with a right can demand respect for it from others; anyone who owns some good can require others to let him enjoy it in peace. It is true that he is looking for his own utility in this way, but it is a just utility. Out of generosity, he could give what he possesses to others, but he is not obliged to do this and others certainly have no right to it. This relationship of utility and right does not associate individuals, but rather disassociates them. It is an element which, despite society, posits in the human race a kind of self-centred, though salutary antagonism.
28. The situation is aggravated because human beings are not simply persons.
Person is only the most sublime, culminating element in human nature.
Everything else which surrounds and envelops this sublime element is of itself
only a thing. Some bond of ownership could exist, therefore, even
relative to human beings, although only in so far as they have things
inherent to themselves (bodily powers, for example) which are not themselves.
The bond cannot exist in so far as any individual is a person. Rights which
have for their subject such human things can be called rights over
things surrounding persons. We have reserved the words seigniory and
dominion(6) for
this kind of ownership. The difference between this kind of ownership and that
which individuals have over things is immense; ownership over things is per
se unlimited, dominion and seigniory over persons is
extremely limited. Human beings cannot be used without the respect due to their
personal dignity (cf. RI, 535).
We can now ask if any society comes about between master and servant as a
result of the bond of seigniory and dominion.
29. None. This bond leaves master and servant isolated in the state of nature understood as the opposite of the state of society.(7)
30. Indeed, the institution of seigniory and servitude results in greater separation between one human being and another. The concept of such a bond contains only end relative to the master, and means relative to the bond-servant. End and means, however, are opposites; they do not form society.(8) The principle of society has to be found elsewhere.
31. In the bare notion of ownership and seigniory even the concept of contract is lacking. It is possible mentally to conceive isolated human beings who have property and bond-servants, and nothing more.(9)
32. These individuals could establish conventions between themselves through which they would have an occasion of applying rational conventional right. But this would still not give rise to society.
33. In fact, not all contracts and conventions are social (cf. RI, 1054-1056). Bilateral contracts, for example, which are formed and cease in the very act of execution, are not social. People totally disassociated from one another can contract to buy and sell, as well as exchange possession over things, without any society resulting from such bargaining and agreement. When objects of ownership are mutually exchanged, for example, contracts begin and finish in that very instant without changing in any way the respective states of the parties to the contract. This explains why I distinguished social from conventional Right, and conventional Right from natural Right. It would seem the best way to use these terms. We do need some word which indicates jural relationships present between individuals before every contract and society. The phrase Right of nature can indeed signify the whole complex of such relationships, which are constituted by nature alone without the intervention of free will. We also need a word indicating the complex of jural relationships proceeding from human will as a result of conventions; conventional Right would seem eminently suitable. Finally, we need a word to indicate jural social relationships; social Right is very apt.(10)
34. Where does the concept of society originate if it is not included in the concept of convention? It comes from what we have rightly called the social bond,(11) formed by two or more persons when they are co-involved, consciously and willingly, in working towards some end. Persons who will to act in this way are `as-sociated'.
35. Consider for a moment why I am not satisfied with saying `the social bond is formed by two or more persons involved in working towards some end', but add: `co-involved, consciously and willing'.
If a number of learned people were working in different parts of the world towards something useful for humanity, but separately, without knowing one another and without a common effort, their wills would certainly be involved in working towards the same end. However, they would not form a society. Even if they knew one another but were each competing to reach the end first, there would be disunion rather than society between them. Ownership would come into the picture because each would want to make the discovery himself rather than hold it in common with others. Again, if each of these learned persons was not only aware of their own number and of their effort to make the discovery, but rejoiced in having companions in the research, there would indeed be: 1. wills working simultaneously; 2. knowledge of this simultaneous effort; 3. willingness that this should be so. Nevertheless, society would still be lacking; there would still be nothing in common. They would be working at the same time but not together.
36. If several wills are to be co-involved in working towards an end, there must be something effectively conjoining them. This must be something all hold together, in solido. Here lies the core of society. The nature of society will only be explained as a result of clarifying this conjunction which unifies and associates different wills.
37. Several debtors, each one of which is obliged for the whole sum, are
said to be obliged in solido, together. Likewise, others can be called
co-owners or co-proprietors of land, for example, or of anything else they hold
conjointly. The concept of society requires that the individuals forming
society have, with an act of their will, posited something in communion.
It is this communion which binds and unifies their wills, all of which
want this communion and conjunction. The cause of society, therefore,
are wills which posit something in communion.
38. Summing up, we can distinguish four factors in society:
1. Two or more wills co-involved in working towards the same object.
2. Knowledge of this co-involvement.
3. Desire for this co-involvement.
4. Two or more co-involved wills positing something in communion.
39. This analysis of the formation of the social bond clearly shows that the act of the spirit by which society is formed cannot pertain to direct cognition. It must always spring from reflective cognition because it necessarily involves knowledge of knowledge, and volition of some volition.
Notes
(3) Society and its Purpose, bk. 1, c. 2.
(4) Reserving things for one's own exclusive, perpetual use must have been introduced little by little on the earth. This is the sense which legists give at present to the word `ownership'. When I speak of the bond of ownership, however, I understand the word more extensively, and include in it the momentary use that is made of things. It is true that such use does not last long. Nevertheless throughout the duration of use, we bind the thing to ourselves, placing our mark upon it in such a way that we suffer if anyone tries to take it away from us. The action gives rise to pain and moral resentment, and thus offends justice. The ancients, too, saw a kind of ownership in the momentary use of a thing. Cicero says: `Since the theatre is common to all, we can rightly say that a given seat belongs to its occupant' (De Finib., 3). Seneca declares: `Places to leave horses are open to all Romans; my place, however, becomes the one I have taken' (De Benef., 7: 12). This explains why Grotius calls the momentary use of something a vice-ownership when he speaks of the first age in which only this kind of instable seigniory was in use. He says: `But such a universal use of right was at the time a matter of vice-ownership. Taking anything in this way could not be done without INJURY' (De B. et P., bk. 2, c. 2, § 2).
(5) Cf. The Philosophy of Right, vol. 2, Rights of the Individual 297-303.
(6) SP, 62-71.
(7) The reader is already aware that in the schema of The Philosophy of Right I placed the Right of nature in opposition to conventional Right, and individual Right to social Right. This vocabulary, however, has not yet been fixed by general use, and I do not wish to insist on it. In fact, I make my hesitation known in order to show the necessity of agreed terminology.
(8) Note the difference between the two following questions: `Is the relationship between master and bond-servant a social relationship?' and `Must there be society between master and bond-servant?' Everyone answers the first question in the negative. I shall deal with the second question later (and answer it affirmatively) under the form: `Does morality require a social relationship (and therefore some kind of society), as well as the relationship of seigniory and servitude, between master and bond-servant?' At present I have to separate these concepts for the sake of clear ideas.
(9) Some may find it difficult to admit the possibility of servitude without an express or tacit contract between the two parties. Remember, however, what I have said about the origin of natural servitude relative to a malefactor. An individual who has been injured, offended or harmed acquires some true superiority and seigniory over the offender and trespasser which lasts at least as long as the latter obstinately remains intent on hating his fellows and doing them harm, provided this constant purpose is known with certainty. - Cf. RI, 1995-1997.
(10) Cf. the schema in RI, 23.
(11) Cf. SP, 37-49.